Supreme Court justice Antonin Scalia asked a pointed question about the court’s power to rewrite a law during oral arguments for the latest challenge against Obamacare.
“But do we have any case which says that when there is a clear provision, if it is unconstitutional, we can rewrite it?” Scalia asked attorney Michael Carvin, who argued on behalf of the plaintiffs in King v. Burwell, a case about the legality of providing subsidies to Obamacare enrollees in states that did not set up health-care exchanges.
Carvin replied in the negative, as he needed to for the sake of blunting a critique from more liberal justices on the court, who suggested that if they accepted his argument that Obamacare only gives subsidies through state exchanges, that would be unconstitutional use of federal money to coerce states into doing what the federal government wants.
Given how much the justices referred to the previous Obamacare challenge — “Did you win that other case?” Chief Justice John Roberts asked when Justice Ruth Bader Ginsburg tried to hold Carvin to a position he’d argued, unsuccessfully, in 2012 — it’s hard not to think that Scalia was needling Roberts a bit. Roberts, of course, upheld Obamacare’s individual mandate by construing it as a tax, which Congress has the authority to levy under the constitution, even though it was written in the law as a penalty, which Congress does not have the authority to create.
“The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command,” as Roberts wrote in the NFIB vs Sebelius opinion. “The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.”
Scalia wrote the conservative dissent in that case, wherein he acknowledged that the federal government could have levied such a tax, but noted that they did not write the law that way.
“We cannot rewrite the statute to be what it is not,” he wrote.